Summary:
34-year old lumber mill worker fell and twisted his back, leading to severe
back pain. A CT scan indicated a herniated disk. Although unable to return
to his time of injury job, claimant was capable, according to medical
and vocational evidence, of working in various positions paying less than
$7 an hour, suggesting a wage loss of over two dollars an hour. Claimant,
who did not actively seek employment, requested permanent partial disability
benefits based on wage loss. While the insurer argued claimant could work
other jobs paying his time of injury wage or higher, the Court was not
persuaded such jobs were available within a reasonable distance of claimant’s
residence or could be obtained and performed by claimant. The parties
also disputed claimant’s entitlement to PPD benefits for lost ability
to perform labor. While the insurer offered no assistance to claimant
in finding work, claimant was hostile to the insurer’s vocational consultant.

Held:
While claimant previously worked in a heavy-labor job, he is now limited
to light labor based on his physical limitations (ability to lift certain
weights), even though he may be able to perform some jobs falling into
a medium category. The wage loss claim is premature where claimant has
not sought work and has not yet received the rehabilitation services mandated
by statute. The insurer is ordered to appoint a rehabilitation provider
who shall assist claimant in preparing a rehabilitation plan. Claimant
is ordered to cooperate and put forth his best efforts in seeking employment.
Wage loss shall be assessed after rehabilitation efforts. Request for
penalty and attorneys fees denied.

Topics:

Constitutions, Statutes,
Regulations and Rules: Montana Code Annotated: section 39-71-2001, MCA
(1993). Where a worker does not immediately return to work,
the rehabilitation requirement of section 39-71-2001, MCA, must be met
before any determination is made regarding claimant’s post-injury wages.

Constitutions, Statutes,
Regulations and Rules: Montana Code Annotated: section 39-71-2001, MCA
(1993). If a rehabilitation plan calls for immediate return
to work, the time for measuring wage loss is at the time when the eight
weeks of rehabilitation benefits specified in section 39-71-2001(3),
MCA (1993), are exhausted. If at that time the claimant has been unable
to secure employment despite his best good faith efforts, his post-injury
wage is zero and his entitlement to permanent partial disability benefits
shall be computed accordingly. If a plan calls for retraining, then
a reasonable time must be allowed for claimant to find work upon completion
of the plan, at a minimum eight weeks, before wage loss is assessed.

Vocational -- Return
to Work Matters: Labor Market. When assessing wage loss for
purposes of permanent partial disability benefits, court will not consider
jobs not available within a reasonable distance of claimant’s home or
which claimant would not be able to obtain and perform.

Benefits: Rehabilitation Benefits: Proof of Wage Loss.
Where a worker does not immediately return to work, the rehabilitation
requirement of section 39-71-2001, MCA (1993), must be met before any
determination is made regarding claimant’s post-injury wages.

Benefits: Rehabilitation
Benefits: Proof of Wage Loss. If a rehabilitation plan calls
for immediate return to work, the time for measuring wage loss is at
the time when the eight weeks of rehabilitation benefits specified in
section 39-71-2001(3), MCA (1993), are exhausted. If at that time the
claimant has been unable to secure employment despite his best good
faith efforts, his post-injury wage is zero and his entitlement to permanent
partial disability benefits shall be computed accordingly. If a plan
calls for retraining, then a reasonable time must be allowed for claimant
to find work upon completion of the plan, at a minimum eight weeks,
before wage loss is assessed.

Benefits: Rehabilitation
Benefits: Generally. If a rehabilitation plan calls for immediate
return to work, the time for measuring wage loss is at the time when
the eight weeks of rehabilitation benefits specified in section 39-71-2001(3),
MCA (1993), are exhausted. If at that time the claimant has been unable
to secure employment despite his best good faith efforts, his post-injury
wage is zero and his entitlement to permanent partial disability benefits
shall be computed accordingly. If a plan calls for retraining, then
a reasonable time must be allowed for claimant to find work upon completion
of the plan, at a minimum eight weeks, before wage loss is assessed.

Benefits: Rehabilitation Benefits: Retraining. If a
rehabilitation plan calls for retraining, then a reasonable time must
be allowed for claimant to find work upon completion of the plan, at
a minimum eight weeks, before wage loss is assessed.

Benefits: Rehabilitation
Benefits: Rehabilitation Plans. If a rehabilitation plan calls
for immediate return to work, the time for measuring wage loss is at
the time the eight weeks of rehabilitation benefits specified in section
39-71-2001(3), MCA (1993), are exhausted. If at that time the claimant
has been unable to secure employment despite his best good faith efforts,
his post-injury wage is zero and his entitlement to permanent partial
disability benefits shall be computed accordingly. If a plan calls for
retraining, then a reasonable time must be allowed for claimant to find
work upon completion of the plan, at a minimum eight weeks, before wage
loss is assessed.

Benefits: Rehabilitation
Benefits: Rehabilitation Providers. Where claimant has a wage
loss, the insurer must immediately designate a rehabilitation provider
who shall assist claimant in developing a rehabilitation plan in accordance
with section 39-71-2001, MCA (1993).

Benefits: Rehabilitation
Benefits: Rehabilitation Plans. Where claimant has a wage loss,
the insurer must immediately designate a rehabilitation provider who
shall assist claimant in developing a rehabilitation plan in accordance
with section 39-71-2001, MCA (1993).

Benefits: Permanent Partial Benefits: Labor Capacity. While
claimant previously worked in a heavy-labor job, he is now limited to
light labor based on his physical limitations, even though he may be
able to perform some jobs falling into a medium category.

Benefits: Permanent
Partial Benefits: Generally. If a rehabilitation plan calls
for immediate return to work, the time for measuring wage loss is at
the time the eight weeks of rehabilitation benefits specified in section
39-71-2001(3), MCA (1993), are exhausted. If at that time the claimant
has been unable to secure employment despite his best good faith efforts,
his post-injury wage is zero and his entitlement to permanent partial
disability benefits shall be computed accordingly. If a plan calls for
retraining, then a reasonable time must be allowed for claimant to find
work upon completion of the plan, at a minimum eight weeks, before wage
loss is assessed.

Wages: Wage Loss.
Where a worker does not immediately return to work, the rehabilitation
requirement of section 39-71-2001, MCA (1993), must be met before any
determination is made regarding claimant’s post-injury wages.

Wages: Wage Loss.
If a rehabilitation plan calls for immediate return to work, the time
for measuring wage loss is at the time the eight weeks of rehabilitation
benefits specified in section 39-71-2001(3), MCA (1993), are exhausted.
If at that time the claimant has been unable to secure employment despite
his best good faith efforts, his post-injury wage is zero and his entitlement
to permanent partial disability benefits shall be computed accordingly.
If a plan calls for retraining, then a reasonable time must be allowed
for claimant to find work upon completion of the plan, at a minimum
eight weeks, before wage loss is assessed.

Wages: Wage Loss.
When assessing wage loss for purposes of permanent partial disability
benefits, court will not consider jobs not available within a reasonable
distance of claimant’s home or which claimant would not be able to obtain
and perform.

The trial in this matter came
on December 11, 1995, in Kalispell, Montana. Petitioner, Jan Gates (claimant),
was present and represented by Ms. Laurie Wallace. Respondent was represented
by Mr. Larry W. Jones. Opening statements were made by counsel. Exhibits
1 through 16 were admitted by stipulation. Additionally, the deposition
of Dr. Sable was submitted for the Court's consideration. The petitioner
and Gerry B. Blackman were sworn and testified.

Having considered the Pretrial
Order, the testimony presented at trial, the demeanor and credibility
of the witnesses, the deposition and exhibits, and the parties' arguments,
the Court makes the following:

FINDINGS OF FACT

1. Petitioner is 34 years old.
He is common-law married and has two young children. He has an eighth
grade education.

2. Claimant has worked a variety
of jobs, generally doing "whatever he can." He worked on a seismograph
crew around 1980. He worked at several restaurants in Texas as a dishwasher
and prep-cook between 1981 and 1985. He has also delivered pizzas, been
self-employed as an auto mechanic for a short time, and worked as a hot-tar
roofer for a short time. Claimant returned to Montana and settled in the
Hamilton area around 1990. After returning to Montana, claimant went to
work for Jim Blue Logging in November of 1990. He was a truck mechanic's
helper but did little actual mechanic work . He then worked as a truck
detailer for one month in June of 1991. His next job was building log
homes with Neville Log Homes in August of 1991. His employment with Neville
lasted until November 1992. He then went to work for Darby Lumber in March
1993 and continued working there until he was injured. Over the years
he has had gaps in his employment due to medical problems and lack of
job opportunities.

3. Claimant was born in Missoula,
Montana, and has resided in western Montana for most of his life. With
the exception of several years spent in Texas and Minnesota, he has resided
in the Bitterroot Valley since around 1980, living in the Darby, Hamilton,
and Victor areas.

4. For the last four years
claimant has lived five miles south of Connor, Montana. His home is approximately
80 miles south of Missoula.

5. At Darby Lumber claimant
started work on the graveyard shift doing cleaning. He then worked on
the green chain at the stud mill. He next took a position where he rotated
every two hours between the green chain, a spotter position, and rover.
He then began training as a board edger, however, he was injured about
a week later.

6. Claimant was injured on
August 16, 1993 when, after removing a jam from the board edger, he fell
and twisted his back. He felt his back snap. He finished his shift but
his back continued to hurt. Claimant was off work for a week, then returned
to work for an additional three months. He ultimately quit due to continuing
back pain.

7. Claimant was examined by
Dr. Alan Rossi on the same day as his injury. (Ex. 8 at 44.) Dr. Rossi
noted that claimant had intermittent back pain in the past and that x-rays
had been taken in April of 1992. Dr. Rossi diagnosed a "possible acute
herniated disc" and arranged for a CT scan of his spine. He prescribed
anti-inflammatories and muscle relaxants.

8. The CT scan of claimant's
lumbar spine revealed a "small lt. sided disc herniation at L4-5." (Id.
at 46.) Dr. Rossi felt the CT results were consistent with claimant's
complaints and on November 30, 1993, he referred him to Dr. Richard Dewey,
a neurosurgeon, for further treatment. (Id.)

9. Dr. Dewey examined claimant
on December 7, 1993. His office notes reflect that claimant had returned
to work one week after the injury, but that on "November 12 he was standing
in his front yard. He experienced a recurrence of severe back pain and
left leg pain which has persisted." (Ex. 6 at 39.) Dr. Dewey agreed that
the CT scan showed a small disc herniation at L4-5. He felt that surgical
intervention would likely be required but wanted to first try conservative
measures to alleviate the symptoms. He also recommended an EMG of the
left leg. (Id. at 40.)

10. An EMG was administered
by Dr. Gary Cooney on December 7, 1993. It was normal in all aspects.
(Ex. 7.) Dr. Cooney noted that "[t]hese findings do not categorically
exclude the possibility of a recent lumbosacral nerve root injury, however."
(Id.)

11. Dr. Dewey advised claimant
to begin a stretching program and requested he return for follow-up. After
examining claimant on January 20, 1994, Dr. Dewey felt he could no longer
perform heavy labor but that he did not require surgery. (Ex. 4 at 28.)

12. Claimant returned to Dr.
Dewey on March 15, 1994 reporting an increase in pain in his back and
lower left extremity. Another EMG was obtained, again with normal results.
On March 24, 1994, an MRI was done. It revealed very mild degenerative
changes. Dr. Dewey reviewed the MRI and found no disc herniation or nerve
root compression. (Ex. 4 at 28(1).)

13. At the request of claimant's
attorney, Dr. Michael D. Lahey, an orthopedic surgeon, evaluated claimant
on May 4, 1994. Dr. Lahey ordered new x-rays which revealed "decreased
disc height at L3-4 and mild angulation through that disc space with flexion/extension
maneuvers." (Ex. 1 at 2.) His impression was that claimant suffered from
"[l]umbosacal strain, presumably due to discogenic or facet pain in the
lumbar spine" and "[d]econditioning." Dr. Lahey recommended physical therapy
and continued use of anti-inflammatories. (Id. at 3.)

14. Claimant again saw Dr.
Dewey on June 6, 1994. His leg pain was gone, however, he was still having
muscle spasms in the back and thigh. Dr. Dewey emphasized the need for
continued stretching and provided the claimant with a prescription to
the Lost Trails Hot Springs for a hot bath with stretching. (Ex. 6 at
42.)

16. Claimant has undergone
physiotherapy at Marcus Daly Hospital since July 25, 1994. (Ex. 5.) He
reported to Dr. Cheatle in December 1994 that the therapy had improved
his flexibility but had not reduced his pain. (Ex. 4 at 29.)

17. In a follow-up visit with
Dr. Lahey on August 22, 1994, claimant reported he had suffered a flare-up
of his back pain after chasing his son and standing too long at a birthday
party. Dr. Lahey recommended he see Dr. Wemple for advice regarding chronic
pain management techniques. (Ex. 1 at 5.)

18. Claimant was seen by Dr.
Wemple on a regular basis for several months beginning in October of 1994,
with only limited success. (Ex. 3.)

19. On December 20, 1994, claimant
was examined by Dr. Martin Cheatle, a psychologist, at the request of
the insurer. Dr. Cheatle felt the claimant had "back pain and dysfunction
that is significantly out of proportion with clinical data to date." (Ex.
4 at 33.) His impression was that claimant had a somatoform pain disorder
and "[p]ersistent musculoskeletal left paralumbar pain and stated left
lower extremity pain secondary to degenerative changes; complicated by
deconditioning and somatization." (Id. at 32.) He recommended
a Functional Capacity Evaluation (FCE) and urged "vocational counseling
and job placement to avoid the patient developing a more severe chronic
pain syndrome." (Id. at 33.)

20. Claimant was seen by Dr.
Lahey for follow-up on October 12 and November 28, 1994. His condition
had gradually improved, however, he continued to suffer flare-ups of his
pain. (Ex. 1 at 7.)

21. Claimant underwent a physical
capacities evaluation on January 23 and 24, 1995. The examiner, Richard
Smith, P.T. concluded claimant was able to perform most light to medium
jobs.

The therapist felt claimant's
physical abilities were limited in the following areas:

(Ex. 10 at 54.) The physical
therapist also concluded that he cannot lift more than 30 pounds overhead
or continuously lift and carry 10 to 20 pounds, and also cannot walk continuously.

Based on the medical records
and the claimant's testimony at trial, I find the above limitations, coupled
with the movement and lifting restrictions imposed by his physicians,
to be an accurate description of his physical limitations.

22. Claimant also suffers an
impairment of his right hand, which was injured when a glass pane broke
in his hand. He has had extensive nerve and tendon reconstruction and
has difficulty grasping small objects. He also lacks full-range of motion
of his thumb.

23. Dr. Lahey saw claimant
on February 13, 1995 and rated him at a 6% whole body impairment. (Ex.
1 at 9.)

24. Claimant was earning $9.50
per hour at the time of injury. The parties agree he is unable to return
to his time-of-injury position.

25. Gerry B. Blackman, a certified
rehabilitation consultant working for Board Certified Rehabilitation Consultants
of Montana (B.C.R.C.), was hired by the insurer to evaluate claimant's
employability. She identified the following jobs as within claimant's
capabilities: big wheel off bearer, core block off bearer, paint line
dry end feeder, auto parts counter person, lubrication servicer, tacking
machine operator, and pizza cook. (Ex. 11 at 1.) All were approved by
either Dr. Lahey or Dr. Sable.

26. Ms. Blackman testified
at trial that jobs of auto parts counter person, lubrication servicer,
tacking machine operator, and pizza cook all paid less than $7.00 per
hour. She also testified and I am persuaded that claimant is capable of
performing these positions. Among the jobs, they are positions available
in significant numbers. Employers could and would accommodate claimant's
need for regular breaks.

27. The insurer concedes that
if claimant is only able to work at jobs paying less than $7.00 per hour,
he is entitled to a 20% award for lost wages. However, it contends that
the remaining three positions, big wheel off bearer, core block off bearer,
and paint line dry end feeder have wages of $9.50 or more.

28. Big wheel off bearer, core
block off bearer, and paint line dry end feeder are all positions at White
Pine Sash, a small wood products manufacturer in Missoula, Montana. All
three positions require either lifting and/or stooping and bending which
appear to be outside the limitations set by Dr. Lahey. Dr. Lahey did not
approve claimant's return to a rover position and the physical requirements
for the above three positions appear similar. Equally troublesome is Gerry
Blackman's testimony regarding the availability of these jobs. She indicated
that these positions are not realistically available at White Pine Sash
in Missoula. Further, they are not available in the Bitterroot Valley
within a reasonable distance from claimant's home. Because of the relatively
high wage, these are desirable jobs which do not have a high turnover
rate. I am not persuaded that claimant would be able to obtain and perform
one of these jobs.

29. Ms. Blackman confirmed
that the position claimant was filling at the time he was injured was
a heavy position. Moreover, claimant credibly testified at trial that
he was required to lift over 50 pounds when working as a rover, qualifying
that as a heavy position.

30. Claimant is now restricted
to light or medium work according to the Functional Capacities Evaluation.
His ability to do medium work is not, however, unqualified. Claimant is
unable to lift over 30 pounds overhead, unable to continuously lift and
carry 10-20 pounds, and unable to walk continuously. (Ex. 10 at 55.) Dr.
Lahey would add to this list "that claimant avoid repetitive bending,
[or] twisting of the lumbar spine." (Ex. 1 at 7.)

31. The claimant has not attempted
to find employment. He testified at trial that he did not believe any
employer would hire him with his back injury. I find that claimant is
both misinformed about his employability and unmotivated to pursue employment.

32. The claimant desires to
remain in Connor and has no plans to move out of the Bitterroot Valley.

33. Missoula is outside claimant's
local job market. It is not reasonable to expect him to commute to a job
in or beyond Missoula.

34. The insurer has offered
claimant no assistance in finding a job. On the other hand, the claimant
was hostile to Blackman.

35. The insurer's conduct in
this case was not unreasonable. The Court has not adopted either party's
approach to measuring wage loss. The classification of claimant's time-of-injury
job as heavy and his classification post-injury were reasonably debatable.

CONCLUSIONS OF LAW

1. The statutes in effect on
the date of injury apply in determining the benefits due. Buckman
v. Montana Deaconess Hospital,224 Mont. 318, 730
P.2d 380 (1986). Since claimant's injury occurred in August of 1993, the
1993 laws apply.

Compensation for
permanent partial disability. (1) If an injured worker suffers
a permanent partial disability and is no longer entitled to temporary
total or permanent total disability benefits, the worker is entitled
to a permanent partial disability award.

(2) The permanent partial
disability award must be arrived at by multiplying the percentage arrived
at through the calculation provided in subsection (3) by 350 weeks.

(3) An award granted an
injured worker may not exceed a permanent partial disability rating
of 100%. The criteria for the rating of disability must be calculated
using the medical impairment rating as determined by the latest edition
of the American Medical Association Guides to the Evaluation of Permanent
Impairment. The percentage to be used in subsection (2) must be determined
by adding the following applicable percentages to the impairment rating:

(a) if the claimant is 30
years of age or younger at the time of injury, 0%; if the claimant is
over 30 years of age but under 56 years of age at the time of injury,
2%; and if the claimant is 56 years of age or older at the time of injury,
3%;

(b) for a worker who has
completed less than 9 years of education, 3%; for a worker who has completed
9 through 12 years of education or who has received a graduate equivalency
diploma, 2%; for a worker who has completed more than 12 years of education,
0%;

(c) if a worker has no wage
loss as a result of the industrial injury, 0%; if a worker has an actual
wage loss of $2 or less an hour as a result of the industrial injury,
10%; if a worker has an actual wage loss of more than $2 an hour as
a result of the industrial injury, 20%; and

(d) if a worker, at the
time of the injury, was performing heavy labor activity and after the
injury the worker can perform only light or sedentary labor activity,
20%; if a worker, at the time of injury, was performing heavy labor
activity and after the injury the worker can perform only medium labor
activity, 15%; if a worker was performing medium labor activity at the
time of the injury and after the injury the worker can perform only
light or sedentary labor activity, 10%.

(4) The weekly benefit rate
for permanent partial disability is 66% of the wages received at the
time of injury, but the rate may not exceed one-half the state's average
weekly wage. The weekly benefit amount established for an injured worker
may not be changed by a subsequent adjustment in the state's average
weekly wage for future fiscal years.

(5) If a worker suffers
a subsequent compensable injury or injuries to the same part of the
body, the award payable for the subsequent injury may not duplicate
any amounts paid for the previous injury or injuries.

(6) As used in this section:

(a) "heavy labor activity"
means the ability to lift over 50 pounds occasionally or up to 50 pounds
frequently;

(b) "medium labor activity"
means the ability to lift up to 50 pounds occasionally or up to 25 pounds
frequently;

(c) "light labor activity"
means the ability to lift up to 25 pounds occasionally or up to 10 pounds
frequently; and

(d) "sedentary labor activity"
means the ability to lift up to 10 pounds occasionally or up to 5 pounds
frequently.

3. Subsection (3)(c) and (3)(d)
are at issue in this case. Subsection (3)(d) provides for percentage award
based upon loss of ability to perform physical labor. At issue in this
case is whether the claimant, who was working in a heavy-labor job at
the time of his injury, is now limited to medium or light-labor activity.

I find that claimant's physical
limitations place him in the light category even though he may be able
to perform some jobs that fall into a medium category. Medium labor is
defined by statute as the ability to lift up to 50 pounds occasionally
and up to 25 pounds frequently. § 39-71-703(6)(b), MCA (1993).

While the FCE indicates claimant
can perform "most light to medium jobs," he is able to lift 50 pounds
occasionally only up to his waist. Overhead lifting is limited to a maximum
of 30 pounds. More importantly, he is unable to lift 25 or even 20 pounds
on a frequent basis.

Since claimant is unable to
perform the lifting requirements defined as medium, he must be classified
under the light-duty category. Accordingly, he is entitled to a 20% award
under section 39-71-703(3)(d), MCA (1993).

4. The wage loss claim is premature.

A claimant is entitled to
permanent partial benefits if he is no longer permanently totally or temporarily
totally disabled and he meets the definition of permanent partial disability.
Permanent partial disability is defined as:

A condition, after a worker
has reached maximum medical healing, in which a worker:

(a) has a medically determined
physical restriction as a result of an injury as defined in 39-71-119;
and (b) is able to return to work in some capacity but the physical
restriction impairs the worker's ability to work.

Entitlement to benefits based
on wage loss is governed by subsection(3) (c) of section 39-71-703, MCA,
which bears repeating here.

(c) if a worker has no wage
loss as a result of the industrial injury, 0%; if a worker has an actual
wage loss of $2 or less an hour as a result of the industrial injury,
10%; if a worker has an actual wage loss of more than $2 an hour
as a result of the industrial injury, 20%. [Emphasis added.]

If the worker returns to his
old job, or to a job which pays as well as his time-of-injury job, he
has no wage loss. If he returns to a position which pays less, then his
wage loss is the difference between his old wage and his new wage. The
issue raised in this case is how to measure post-injury wages when the
claimant has not returned to work, and when do you measure lost wages.
Both parties refer to this Court's decision in Gjerde v. Employers
Insurance of Wausau, WCC No. 9408-7134 (December 8, 1994) as determinative
of those issues. However, Gjerde is distinguishable on its facts
since claimant was seeking further retraining, while in this case claimant
has simply made no effort to secure employment. Moreover, in Gjerde
I failed to consider the specific language of the statute and simply adopted
the parties' quasi-loss-of-earning capacity arguments. Insofar as Gjerde
is inconsistent with the present decision, it is overruled.

These issues were also not
considered in the Order Denying Motion for Partial Summary Judgment entered
in this case on November 7, 1995. In the summary judgment motion, the
insurer urged the Court to use the highest potential wage; the claimant
wanted the Court to average the wages of the approved jobs. The Court
rejected both approaches because an accurate measurement of what claimant
can earn depends on specific facts.

In 1993 the legislature repealed
the loss-of-earning-capacity measure in partial disability cases and substituted
the objective wage-loss measure. The language of the statute contemplates
an actual return to work. The real question, of course, is how to determine
actual wage loss when there has been no return to work, and how long can
you defer determination pending a return to work. Claimant argues that
the wage loss benefit should be determined as soon as the claimant is
determined to be at maximum medical improvement (MMI) and that if he is
not working then his "actual wage" is zero. This analysis leads to an
absurd result since most claimants are not working when they reach MMI.
Absurd results should be avoided whenever possible. United States
v. Ryan, 284 U.S. 167 (1931); Billings Properties, Inc. v. Yellowstone
County, 144 Mont. 25, 394 P.2d 182 (1964). The insurer offers no
specific timetable, adhering to its potential earning analysis.

Section 39-71-703(3(c), MCA
(1993) is silent on this matter. However, a specific provision of a statute
cannot be read in isolation. All of the provisions of the Act must be
harmonized and combined together to give effect to them all. Lake
v. Lake County, 233 Mont. 126, 132, 759 P.2d 161, 165 (1988). The
Act must be construed as a whole and all of its provisions coordinated.
Handlos v. Cyprus Indus. Minerals, 243 Mont. 314, 317, 794 P.2d
702, 703 (1990). We will therefore consider other provisions of the Act
in attempting to resolve the critical questions.

Initially, I note that the
legislature has expressly stated that a primary objective of the Act is
to return workers to actual jobs:

A worker's removal from the
work force due to a work-related injury or disease has a negative impact
on the worker, the worker's family, the employer, and the general public.
Therefore, it is an objective of the workers' compensation system to return
a worker to work as soon as possible after the worker has suffered a work-related
injury or disease.

Section 39-71-105(2), MCA (1993).
In furtherance of that objective, the legislature adopted provisions for
the rehabilitation of workers who cannot return to their time-of-injury
job. Specifically, the legislature adopted section 39-71-2001, MCA (1993):

(a) the injury results
in permanent partial disability or permanent total disability
as defined in 39-71-116;

(b) a physician certifies
that the injured worker is physically unable to work at the job the
worker held at the time of the injury;

(c) a rehabilitation plan
completed by a rehabilitation provider and designated by the insurer
certifies that the injured worker has reasonable vocational goals and
a reemployment and wage potential with rehabilitation. The plan must
take into consideration the worker's age, education, training, work
history, residual physical capacities, and vocational interests.

(d) a rehabilitation plan
between the injured worker and the insurer is filed with the department.
If the plan calls for the expenditure of funds under 39-71-1004, the
department shall authorize the department of social and rehabilitation
services to use the funds.

(2) After filing the rehabilitation
plan with the department, the injured worker is entitled to receive
rehabilitation benefits at the injured worker's temporary total disability
rate. The benefits must be paid for the period specified in the rehabilitation
plan, not to exceed 104 weeks. Rehabilitation benefits must be paid
during a reasonable period, not to exceed 10 weeks, while the worker
is waiting to begin the agreed-upon rehabilitation plan. Rehabilitation
benefits must be paid while the worker is satisfactorily completing
the agreed-upon rehabilitation plan.

(3) If the rehabilitation
plan provides for job placement, a vocational rehabilitation provider
shall assist the worker in obtaining other employment and the worker
is entitled to weekly benefits for a period not to exceed 8 weeks at
the worker's temporary total disability rate. If, after receiving
benefits under this subsection, the worker decides to proceed with a
rehabilitation plan, the weeks in which benefits were paid under this
subsection may not be credited against the maximum of 104 weeks of rehabilitation
benefits provided in this section.

(4) If there is
a dispute as to whether an injured worker can return to the job the
worker held at the time of injury, the insurer shall designate a rehabilitation
provider to evaluate and determine whether the worker can return to
the job held at the time of injury. If it is determined that the
worker cannot return to the job held at the time of injury, the worker
is entitled to rehabilitation benefits and services as provided in subsection
(2).

(5) A worker may not receive
temporary total or biweekly permanent partial disability benefits and
rehabilitation benefits during the same period of time.

(6) The rehabilitation provider,
as authorized by the insurer, shall continue to work with and assist
the injured worker until the rehabilitation plan is completed.

(7) A worker may not receive
both wages and rehabilitation benefits without the written consent of
the insurer. A worker who receives both wages and rehabilitation benefits
without written consent of the insurer is guilty of theft and may be
prosecuted under 45-6-301. [All emphasis added.]

The language of subsection
(4) is mandatory: if a worker cannot return to his time-of-injury job,
he is "entitled to rehabilitation benefits and services as provided in
subsection (2)." If there is any dispute concerning the worker's ability
to return to his time-of-injury job, subsection (4) states "the insurer
shall designate a rehabilitation provider." (Id.)
Moreover, even if there is no dispute, and both parties agree the
worker cannot return to his time-of-injury job, the second sentence of
subsection (4) provides that the worker is entitled to benefits and services.
Under subsection (3), at a minimum a worker who is unable to return
to his time-of-injury job is entitled to eight weeks of rehabilitation
benefits and vocational assistance in job placement.

Considering the language requiring
"actual wage loss," together with the mandatory language of the rehabilitation
statute, I conclude that in cases where the worker does not immediately
return to work the legislature intended that the rehabilitation requirement
of section 39-71-2001, MCA, be met before any determination is made regarding
the claimant's post-injury wages. The purpose of section 39-71-2001, MCA,
is to assist claimants in finding actual employment, and actual employment
is a prerequisite to actual wages.

In this case, a vocational
rehabilitation counselor was designated for the express purpose of determining
claimant's ability to return to work, thus triggering the provisions of
section 39-71-2001, MCA. However, neither the insurer nor claimant followed
through. The insurer failed to authorize the counselor to assist claimant
in developing a plan. Claimant on his part expressed hostility to any
assistance by the counselor and to seeking a job. He has made no effort
whatsoever to obtain employment.

I therefore find the request
for wage loss benefits to be premature. The parties must comply with section
39-71-2001, MCA. Indeed, the rehabilitation process prescribed by the
section must be commenced immediately upon the insurer's
receipt of notice stating that a claimant has reached MMI. The insurer
is required to authorize a rehabilitation provider to work with the claimant
to develop a plan. The claimant is required to cooperate with the rehabilitation
provider in developing and carrying out a plan. If the plan calls for
employment, claimant must diligently seek employment and refrain from
self-defeating behaviors in doing so. If retraining is called for, claimant
must diligently pursue his retraining and, upon completion, diligently
seek employment.

If upon execution of the plan
the claimant finds employment, then the wage he earns shall be used to
compute his entitlement for wage loss benefits. If despite his best, good
faith efforts, claimant is unable to find employment, his wage loss must
be computed using zero as his actual wage, because in fact his wage will
be zero.

5. If the rehabilitation plan
calls for an immediate return to work, the time for measuring wage loss
is at the time the eight weeks of rehabilitation benefits specified in
section 39-71-2001(3), MCA, are exhausted. If at that time claimant has
been unable to secure employment despite his best good faith efforts,
his post-injury wage is zero, and his entitlement shall be computed accordingly.
If the plan calls for retraining then a reasonable time must be allowed
for claimant to find work upon completion of the plan. At a minimum, eight
weeks, the same as for a immediate return to work, must be allowed for
the claimant to find work. The Court makes no determination whether a
longer time is permitted. If the claimant is unable to find employment
despite his best good faith efforts, then his post-injury wage is zero
and his entitlement should be computed accordingly.

6. Since the insurer's conduct
in this case was not unreasonable, claimant is not entitled to either
attorney fees or a penalty. §§ 39-71-612 and 39-71-2907, MCA (1993).

7. Claimant is entitled to
his costs.

JUDGMENT

1. Claimant is entitled to
a 20% award under section 39-71-703(3)(d), MCA, which the insurer shall
pay forthwith.

2. The insurer shall designate
a rehabilitation provider who shall assist claimant in developing a rehabilitation
plan in accordance with section 39-71-2001, MCA.

3. The claimant is ordered
to cooperate with the rehabilitation provider and to put forth his best
efforts in meeting the goals of the agreed upon rehabilitation plan.

4. A determination of the benefits
due claimant for wage loss is premature but must be ultimately calculated
according to the analysis set forth in the Court's conclusions of law.

5. Claimant is not entitled
to attorney fees or a penalty.

6. The claimant is awarded
his costs.

7. The Court retains jurisdiction
to enforce this Order.

8. This JUDGMENT is certified
as final for purposes of appeal pursuant to ARM 24.5.348.

9. Any party to this dispute
may have 20 days in which to request a rehearing from these Findings of
Fact, Conclusions of Law and Judgment.

DATED in Helena, Montana,
this 29th day of December, 1995.

(SEAL)

/s/ Mike
McCarter
JUDGE

c: Ms. Laurie Wallace
Mr. Larry W. Jones
Submitted: December 11, 1995

1. Dr. Dewey's
office notes for treatment on January 20, 1994 and thereafter were not
tendered to the Court. The information concerning these later visits is
taken from Dr. Martin Cheatle's report of December 20, 1994. (Ex. 4.)
It is apparent from that report that Dr. Cheatle reviewed Dr. Dewey's
records.